The jury returned with a verdict very close to 12:00 noon. (1) After
unsuccessfully attempting to locate defendant, the court recessed until 1:30 p.m. At 1:30,
the court reconvened, and defendant still was not present. The court again recessed until
1:41 p.m., when defendant arrived. At that time, the following colloquy occurred
between the court and defendant:

"THE COURT: [Defendant], the jury reached a verdict before the
noon hour. We were unable to locate you and so they had to come back at
1:30 and we've now been waiting this while for you to arrive and I do think--

"[DEFENDANT]: Your Honor, we were sitting right on out here.

"THE COURT: No you weren't. We all looked for you and you
were not there. So, I do think that you owe the jury an apology.

"[DEFENDANT]: I apologize but we were sitting out there until--

"THE COURT: No. No, you weren't, [Defendant]. We all checked,
the bailiff, the clerk, myself and [opposing counsel] checked for you before
the noon hour and you were not here. And we called your office, got an
answering machine, we looked in the bathroom for you--

"[DEFENDANT]: My client and her husband and I were sitting out
here." (Emphasis added.)

The court did not respond to defendant's final declaration and, instead, received the
verdict. After receiving the verdict, the court apologized for the "inconvenience" that the
jurors had experienced, presumably referring to defendant's tardiness. The court then
excused the jury, but the court and counsel remained in open court on the record. At that
point, defendant continued to insist that she had been in the hallway at noon:

"[DEFENDANT]: Your Honor, just for the record my client will
attest that we were out there.

"THE COURT: [Defendant], I don't know what to tell you, I've said
it twice already. [Opposing counsel] checked, I checked, the bailiff
checked, the clerk checked, you were not out there and it was not yet 12:00.

"And so, I am, quite frankly, I take this as a misrepresentation to the
court and I'm going to have to think about how I'm going to deal with this."
(Emphasis added.)

After a brief recess, the court returned and informed defendant that it was
finding her in contempt. The court did not hold an evidentiary hearing. The court entered
a written judgment five days later that required defendant to pay $269.92--the jury fees in
the underlying civil trial--as a remedial contempt sanction. The court made no finding of
willfulness on the record or in the contempt judgment.

On appeal, defendant argues that the court was not authorized to hold her in
contempt in a summary proceeding, because the entire conduct constituting the alleged
contempt did not take place while the court was in official session. If defendant's
argument is correct, she was entitled to appropriate procedural safeguards, including a
hearing, in advance of any determination that she engaged in misconduct constituting
contempt. See ORS 33.055 (providing the procedure for the imposition of remedial
sanctions). Defendant also argues that the judgment is invalid because the court did not
find that her actions were willful.

The state responds that the court was authorized to proceed in summary
fashion because defendant's assertions that she had been in the hallway at noon--the
alleged misrepresentations--were made in the presence of the court while it was in
session. The state further asserts that defendant's contradiction of the judge, in the
presence of the jury, was as much the basis for the contempt order as was the alleged
misrepresentation. According to the state, we could affirm solely on that ground. Finally,
the state argues that there is "no procedural requirement that an express finding of
willfulness" be included in a summary contempt judgment.

We first address the ground on which the trial court held defendant in
contempt. On the record, the court stated that defendant's statements were a
"misrepresentation to the court." (Emphasis added.) The court also made clear that it
was "more upset at this point about your telling me something that I personally know is
not true [than] I am about your being late." (Emphasis added.) Additionally, in a letter to
defendant's attorney, the trial judge reiterated that "the Judgment of Civil Contempt was
based on your client's misrepresentation to the court concerning her noncompliance with
the court's prior directive * * * ." (Emphasis in original.) It is clear from those
statements that the court found defendant in contempt based only on the substance of
defendant's purported misrepresentation and not based on defendant's acts of
contradicting or disputing with the court. Because the judgment of contempt depended
upon the court having determined that defendant engaged in particular misconduct, see
ORS 33.015(2), it is beside the point that the court also could have held defendant in
contempt on a different ground. Therefore, we do not consider further the state's
argument that defendant's mere acts of contradicting the court constituted contempt.

Before we turn to the decisive issue, we briefly consider the nature of
summary contempt proceedings. A court has inherent authority to sanction summarily
contempt committed in its immediate view and presence in order to protect the dignity,
authority, and order of the court. See State v. Baker, 126 Or App 508, 513, 868 P2d 1368,
rev den 318 Or 661 (1994) (explaining the rationale behind summary contempt
proceedings under ORS 33.096). That inherent authority does not offend federal
constitutional due process requirements. In In re Oliver, 333 US 257, 275, 68 S Ct 499,
92 L Ed 682 (1948), the Supreme Court held that due process requirements in contempt
cases do not apply to

"charges of misconduct, in open court, in the presence of the judge, which
disturbs the court's business, where all of the essential elements of the
misconduct are under the eye of the court, are actually observed by the
court, and where immediate punishment is essential to prevent
'demoralization of the court's authority.'" (Citing Cooke v. United States,
267 US 517, 45 S Ct 390, 69 L Ed 767 (1925)) (emphasis added).

On the other hand, if conduct constituting contempt does not occur in the immediate view
and presence of the court, it may not be punished summarily. A defendant charged with
"indirect contempt" must be afforded certain statutorily and constitutionally required
procedures, including the right to a hearing. ORS 33.055; ORS 33.065; see also Oliver,
333 US at 274-76.

With the foregoing in mind, we turn to the parties' disagreement about the
meaning of the statutory phrase "presence of the court." In construing that phrase, we
examine the text and the context of the statute. PGE v. Bureau of Labor and Industries,
317 Or 606, 610, 859 P2d 1143 (1993). Although its application to the present
circumstances presents an issue of first impression, the questioned phrase is a well-established legal term that has long held a place in the common law of contempt. See,
e.g., State v. Noble, 314 Or 624, 628-29, 842 P2d 780 (1992) (describing the common law
and statutory contempt provisions that predated the adoption of the Oregon Constitution).
Therefore, our construction of the statute includes an examination of the pre-existing
common law and statutory framework within which it was enacted. McIntire v. Forbes,
322 Or 426, 431, 909 P2d 846 (1996) (applying principle to analysis of statutory text); Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998) (applying principle to analysis
of statutory context).

"ORS 33.096 was adopted in 1991 as a part of a comprehensive
reform of several statutes that control proceedings for contempt of court.
Or Laws 1991, ch 724, §§ 1-14. The preexisting statutory scheme
incorporated several concepts regarding contempt of court that had their
origin in the common law. One concept was that a 'direct' contempt is one
committed in the presence of the court while sitting in a judicial capacity."
(Emphasis added.)

See also State v. Driscoll, 151 Or 363, 368, 50 P2d 581 (1935) (attempt to bribe a judge
in chambers cannot be sanctioned by summary contempt); Baker, 126 Or App at 511
(defendant who berated judge who was signing papers in his office could not be
summarily held in contempt). ORS 33.096 maintains that rule intact. Barton, 325 Or at
75-76. Thus, conduct amounting to direct contempt is generally "disclosed by the
record." Taylor v. Gladden, 232 Or 599, 603, 377 P2d 14 (1962). In that way, an
appellate court can conduct meaningful review so as to determine whether the record
supports a finding of contempt and justifies the sanction imposed. See City of Klamath
Falls v. Bailey, 43 Or App 331, 334, 602 P2d 1107 (1979) (in most instances, reviewing
court can determine from transcript of summary contempt proceedings whether
adjudication is supported by evidence and law).

Defendant next argues that the trial court erred by failing to make a specific
finding that she acted willfully. Because the issue may arise on remand, we briefly
address the state's argument that ORS 33.055, the statute providing for remedial contempt
sanctions, does not expressly require such a finding. This court has held that "[a]
contempt judgment must be supported by specific findings, including a finding that the
violation of the court's order was 'willful.'" Patchett and Patchett, 156 Or App 69, 72,
964 P2d 1114 (1998). The state contends that Patchett is inapplicable because here,
unlike in Patchett, no "order" was violated. We disagree. Although, in Patchett, this
court did not identify the statutory basis for the underlying judgment of contempt, the
same statutory definition of contempt was applicable there as pertains here. That
definition is found in ORS 33.015(2), which requires that conduct constituting contempt
be done "willfully." Although Patchett addressed the violation of an existing order, that
fact was merely fortuitous. Its holding is equally applicable in the present circumstance.

Judgment of contempt reversed; remanded for further proceedings.

1. The record contains conflicting statements about whether the jury returned
with a verdict slightly before or slightly after noon.

3. Our conclusion is consistent with the common law meaning of "presence of
the court" in other jurisdictions. The Texas Court of Appeals, for example, has held that
presenting false documents and making false statements to a court amounts to indirect
contempt and "the alleged contemnor has the right to notice of the charge, a right to a trial
or hearing, and a right to counsel." Ex parte Powell, 883 SW2d 775, 777 (Tex App
1994). The North Carolina Court of Appeals faced a similar issue in In Re Edison, 190
SE2d 235 (NC App 1972). There, the trial court had received an affidavit from the
alleged contemnor. A month later, after conducting an independent investigation and
concluding that the defendant submitted a false affidavit, the trial court held him in direct
contempt. On appeal, the court held that the false testimony did not constitute direct
contempt, because "all the facts necessary to establish the false testimony were not before
the court, therefore, it [was] impossible to say that there were words spoken or acts
committed in the actual presence of the court * * *." Id. at 239.